Saleeba v Wilke

Case [2007] QSC 298


SUPREME COURT OF QUEENSLAND

CITATION:

Saleeba v Wilke [2007] QSC 298

PARTIES:

CHRISTINA DIANA SALEEBA AS EXECUTOR FOR THE LATE JOHN RUDOLF HEDKE (ALSO KNOWN AS JOACHIM RUDOLF HEDKE)
(applicant)
v
JOSEPH HANS WILKE
(respondent)

FILE NO:

BS 398 of 2005

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

19 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2007

JUDGE:

Chesterman J

ORDER:

Application dismissed

CATCHWORDS:

REAL PROPERTY - GENERAL PRINCIPLES - INTERESTS IN LAND – INCIDENTS - JOINT TENANCY – SEVERANCE - OTHER CASES – where the respondent held property as joint tenant with another – where a dispute had arisen between them – where the respondent made a written offer to sell the property and divide the proceeds equally - where the other co-owner accepted but only after the lapse of the offer – where there was no further evidence of any agreement after the late acceptance - where no further steps were taken to sell the property before the death of the co-owner – whether the correspondence constituted a severance of the joint tenancy – whether at the time of the co-owner’s death the co-owners held the property as joint tenants or tenants in common  whether on the co-owner’s death the respondent held the entire property as sole owner

Abela v Public Trustee (1983) 1 NSWLR 308, applied
Calabrese v Miuccio (No2) [1985] 1 Qd R 17, cited
Corin & Anor v Patton (1990) 169 CLR 540, applied
Lyons v Lyons [1967] VR 169, considered
Magill v Magill NSWCA 40142 of 1993, considered
Public Trustee v Pfeiffle [1991] 1 VR 19, applied
Slater v Slater Eq 1365 of 1986 Equity Division
16 June 1987, considered
Sprott v Harper [2000] QCA 391, applied
Williams v Hensman (1861) 70 ER 862, applied
Wilson v Bell (1843) 5 Ir. Eq. R 501, considered

COUNSEL:

Ms D.A Skennar for the applicant
Mr C Jennings for the respondent

SOLICITORS:

Chris Reeve & Co for the applicant
Deacons for the respondent

  1. This efficiently and economically argued application requires only an answer to the question whether a joint tenancy was severed during the lifetime of the joint tenants.  The applicant is the daughter and executrix of the late John Hedke, one of the joint tenants, who died on 28 June 2004.  The respondent, Mr Wilke, is the surviving


    co-owner.

  1. In early 1994 Messrs Hedke and Wilke agreed to buy a residential home unit on Hilton Terrace at Tewantin, Lot 2 on BUP 5923, County of March, Parish of Weyba, for the sum of $100,000.  On or about 16 March 1994 Mr Wilke for himself and his nominee contracted to purchase the unit.  Title to it was duly conveyed to the late Mr Hedke and Mr Wilke as joint tenants, and they became registered proprietors on 16 November 1994.

  1. The applicant seeks a number of declarations but in particular a declaration that at the time of his death Mr John Hedke and the respondent held…

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Details
AGLC
Saleeba v Wilke [2007] QSC 298
Case
[2007] QSC 298
Decision Date

CaseChat Overview and Summary

The applicants, Saleeba, and respondents, Wilke, held property as joint tenants. A dispute arose between the parties, prompting the respondent to offer to sell the property and divide the proceeds equally. The other co-owner accepted the offer but only after the lapse of the offer. There was no further evidence of any agreement after the late acceptance, and no further steps were taken to sell the property before the co-owner's death. The primary issue was whether the correspondence constituted a severance of the joint tenancy, and whether at the time of the co-owner’s death, the co-owners held the property as joint tenants or tenants in common. The further issue was whether, upon the co-owner's death, the respondent held the entire property as sole owner.

The court found that the correspondence did not constitute a severance of the joint tenancy. The late acceptance of the offer to sell the property was ineffective. There was no subsequent agreement between the parties to sever the joint tenancy. The co-owners continued to hold the property as joint tenants until the death of the co-owner. The court held that the respondent did not hold the entire property as sole owner upon the co-owner's death. The application was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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